Advisory Opinion: 2075

Year Issued: 2004

RPC(s): RPC 1.9

Subject: Potential conflict of interest


The inquirer presented the following factual situation: Client L was represented by a member of a law firm a few years ago as a plaintiff in a construction defect case related to her home. Representation was ended prior to trial. The law firm now represents client R in an encroachment claim involving a different parcel of real property that L is developing on property adjacent to R’s property. It is alleged that L has built an encroaching driveway and damaged some of R’s trees. The law firm states that it has not retained files from the construction defect matter and that the lawyer who represented L “does not have any relevant confidences or secrets, damaging or otherwise,” to share with the firm’s current lawyer representing R.

The inquirer asks if RPC 1.9 precludes representation of R?

It appears from the facts as presented that the two cases are not the same or substantially related; thus the firm’s representation of R does not run afoul of RPC 1.9. In addition, RPC 1.9(b) prohibits using any confidence or secret relating to the representation to the disadvantage of the former client.

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Advisory Opinions are provided for the education of the Bar and reflect the opinion of the Committee on Professional Ethics (CPE) or its predecessors. Advisory Opinions are provided pursuant to the authorization granted by the Board of Governors, but are not individually approved by the Board and do not reflect the official position of the Bar association. Laws other than the Washington State Rules of Professional Conduct may apply to the inquiry. The Committee's answer does not include or opine about any other applicable law other than the meaning of the Rules of Professional Conduct.